tor to file bill.

END SUIT. all other proceedings which might be thought neceffary for carrying the faid deed and the intention of the faid parties into execution, fhall be forthwith, and in the first place in the lifetime of her the faid B. A. paid out of the faid principal truft monies, and trust funds thereby limited and appointed or intended fo to be, and that each of the faid parties fhall and will confent, and agree thereto in court at the hearing of the faid caufe, either in perfon or by counfel, or any other application to the faid court, which fhall or may be made in either of the aforefaid fuits, or do, perform, or execute any other act or acts, deed or deeds, or matter, or thing which fhall, or may be thought neceffary for that purpose. Power to folici- And further, they the faid B. A. and D. C. do and each of them doth hereby empower the faid T. I. to prepare and file, or caufe to be prepared and filed, a fupplemental bill with the answer of the faid B. A. thereto, and to the faid original bill filed by the faid D. C. in the manner, and for the purposes aforefaid; and to profecute the fame and all fuits and proceedings neceffary for the purposes aforefaid. with effect, and to employ fuch counfel therein as the faid T. I. fhall think fit for all or any of the purpofes aforefaid and to appear in court, and to admit all fuch matters as well on the part of the said D. C. his executors, adminiftrators, and affigns, as of the faid B. A. as fhall be thought proper or neceffary for the effectuating all and every of the purpofes aforefaid, and to do all further acts, matters, and things requifite and neceffary in or touching the premises. And laftly, he the faid D. C. for and in confideration of the premifes, and in particular part of the con- of the faid appointment fo hereby made to him the faid D. C. his executors, adminiftratores and affigns, of all the faid principal truft monies, and trust funds,

Agreement by the appointee to perform his

tract.

upon the death of the faid B. A. as aforefaid, hath END SUIT. confented, declared, and agreed, and by thefe prefents doth confent, declare, and agree to and with the faid B. A. and her affigns, that in cafe the faid court fhall upon the hearing of the faid caufe fo inftituted by the faid D. C. as aforefaid, think fit to eftablish the faid deed, and the agreements, and appointments hereby made, and decrce the faid principal,truft monies, and truft funds, to be paid to her the faid D. G. accordingly, upon the death of the said B. A. then, and in such cases, but not otherwise, all the faid interefts and dividends of all the faid truft monies, and truft funds, fo hereby limited and appointed as aforefaid, after and subject to the payment of the cofts aforefaid, fhall in the mean time be paid to and received unto the said B. A. for and during the term of her natural life, to and for her own fole and feparate ufe and benefit, any thing in the faid above in part recited deed of appointment of the faid day of to the contrary in any wife notwithstanding. In witnefs, &c.

264

OF

ASSIGNMENTS.

Nature of
an affignment.

Difference between an under

leafe and an affignment.

IN offering fome few remarks relative to a deed of affign

ment, I fhall confider

I. The nature of this fpecies of Affurance.

II. What may be the subject of an Assignment.

III. The circumftances requifite to the validity of an Affignment.

IV. The effect and operation of an Affignment.

I. Of the Nature of an Affignment.

AN affignment, ftrictly speaking, feems to be the transferring or making over fome eftate or interest already in effe, from one perfon to another, in which fenfe it includes every fpecies of executed contract, which does not create a new estate. But in its more confined and technical sense, it is appropriated to the transfer of fome eftate, either in chattel or equitable property, in which a third perfon, not a party to the affignment, has fome right or interest. See 2 Blac. Com. 326. 1 Bac. Ab. 8vo. 248. It is, however, ufually applied to an estate for life or years. 2 Blac. Com. 326. and hence the true difference with respect to leafes, between an underleafe and affignment, appears to be not that which is usually given, namely, that the first is the parting with a less interest than one's own, and an affignment of the whole of one's intereft, but that a lease is the grant of a diftinct eftate, de novo, whilft an affignment is the transfer of an old or exifting eftate. According to this definition of an affignment, the cafe in Stra. 405. holding, that an agreement between a leffee

and B. that B. fhould hold the houfe, &c. for the remainder of his, the leffee's term, paying and performing to the leffee. the rents and covenants in the original lease, was not an affignment, but an underleafe only, notwithstanding there was no reverfion left in the leffee, appears to be far more confonant with the genuine diftinction between them, than the latter cafe of Palmer and Edwards, Dougl. 187, where Buller and Willes, (abfent Mansfield and Afhhurst) held, that every transfer of the whole intereft of the leffee, will be an affignment, even though the leffee referve rent, or introduce a new covenant into the deed; for in this case the eftate which paffes from the leffee is evidently, as appears to the Editor, not the fame, but a diftin&t and separate intereft, though of the fame duration, the contrary opinion is however established by late authorities.

not in all cafes

And where a perfon by affignment parts with his whole Affignee does intereft, it is ftated, in most of our law treatises in which stand in the the subject of affignments is noticed, that "the affignee fhoes of the affignor. stands, to all intents and purposes, in the place of the affignSee 2 Blac. Com. 326. 2 Blac. Rep. 326. 766. 1 Pow. Wood, 563. this, however, appears to be too hafty a conclufion. And fee 5 Co. 16. 3 Bur. 1271. 1 Dougl. 174.

er."

II. What may be the fubject of an Assignment.

As a deed of affignment, like every other species of affurance, is nothing else than an evidence or indication of a contract or agreement, it follows, that whatever may be the fubject of an agreement, may also be the fubject of that species of affurance which is calculated to transfer it to an affignee, and e contra; hence the fubject of this fection has, in a great measure, been anticipated by the remarks which have been made on the sUBJECT MATTER OF AGREEMENTS, fome few obfervations are fill, however, referrible more particularly to this head.

What may be

affigned.

By the common law nothing could be affigned over to Chofe in action another but what was in the actual poffeffion of the aflignor, "the wisdom and policy of the fages and founders of our law having provided, that no poffibility, right, title, or thing, in action, should be granted or affigned to ftrangers, left it should be the occafion of multiplying fuits and contentions." See 10 Co. 48, a. Co. Lit. 214. 1 Roll. Ab. 376, Skin. 6. 26.

This nicety is now, however, difregarded, and our courts of equity confidering, that, in a commercial country, almost all perfonal property must neceffarily lie in contract, will protect the affignment of a chofe in action, as much as the law will that of a chofe in poffeffion (a), though, in compliance with the ancient principle, the form of affigning a chose in action is in the nature of a declaration of trust and an agreement to permit the affignee to make ufe of the name of the affignor, in order to recover the poffeffion (b), and therefore when in common acceptation a bond is faid to be affigned over, it must still be fued in the name of the original creditor; the perfon to whom it is transferred being rather an attorney than an affignee (c); 2 Blac. Com. 30. 10. Co. 48, a. 3 P. Wms. 199. and fee the cafes collected I Fonb. Eq. 213, which, though they incontrovertibly eftaPerfonal inter- blifh the principle that chofes in action, and interests in contingency, are affignable, yet they seem also to show, that in the case of affignment of perfonal interefts, equity will, in general, require the affignee to prove that he gave a valuable confideration for the intereft affigned, and will not, therefore, affift mere volunteers. Where, however, fuch affignments have been contested as against executors, adminiftrators, or heirs at law, the courts have established them though not made for a valuable, but only for a good confideration, as natural love and affection. Beckley v. Newland, 2 P. Wms. 182. Hobfon v. Trevor, ib. 192. Wright v. Wright, 1 Vez. 409. (d) Delany and Stoddart, 1 Durn, and

efts.

(a) Another principle upon which courts of equity proceed in eftablishing affignments of chofes in action, whether with or without confideration, is that the affignment ought in juftice to the affignee, to be conftrued to be a covenant on the part of the affignor, that the affignce fhall thenceforth. poffefs the thing affigned to his own ufe, which covenant or agreement the court will carry into specific execution.

(b) See obfervations of Mr. Juft. BULLER, on the affignment of chofes in action, in Mafler v. Miller, 4 Durn. and E. Rep. 320.

(c) See the diftinction between an affignee and an attorney, or deputy, Term de la Ley, title Affignee.

(d) In this cafe a diftinction appears to have been taken between the affignment of a poffibility of inheritance and that of a chattel real, this diftinction has however been overruled.